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    "judges": [
      "Judges MCCULLOUGH and THOMAS concur."
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    "parties": [
      "DIXIE LUMBER COMPANY OF CHERRYVILLE, INC., Petitioner v. NORTH CAROLINA DEPARTMENT OF ENVIRONMENT, HEALTH AND NATURAL RESOURCES, DIVISION OF ENVIRONMENTAL MANAGEMENT, Respondent"
    ],
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      {
        "text": "WYNN, Judge.\nDixie Lumber Company of Cherryville, Inc. appeals the trial court\u2019s affirmance of the Final Agency Decision of the North Carolina Department of Environment and Natural Resources (\u201cEnvironmental Department\u201d) denying reimbursement from the Commercial Leaking Petroleum Underground Storage Tank Cleanup Fund, N.C. Gen. Stat. \u00a7 143-215.94B (1999) (\u201cCommercial Fund\u201d). We affirm.\nIn March 1998, Dixie Lumber sought reimbursement from the Commercial Fund for cleanup costs incurred by releases from two underground petroleum storage tanks on Dixie Lumber\u2019s property. The Environmental Department denied reimbursement upon concluding that Dixie Lumber was the operator of the tanks, and had failed to pay fees assessed against operators.\nJudge Beryl E. Wade, Office of Administrative Hearings, conducted a contested case hearing on 10 February 2000. Judge Wade concluded Dixie Lumber was the operator of the tanks with unpaid fees, and recommended denial of Dixie Lumber\u2019s claim for reimbursement by the Final Agency. The Final Agency Decision adopted Judge Wade\u2019s Recommended Decision with additional findings of fact and conclusions of law. On judicial review, Superior Court Judge Sanford L. Steelman, Jr. affirmed the Final Agency Decision. Dixie Lumber appeals.\nDixie Lumber first argues that the trial court erred in concluding that the findings of fact and conclusions of law in the Final Agency Decision were supported by substantial, competent and material evidence in the record, and in concluding that the Final Agency Decision was not arbitrary or capricious. We disagree.\nIn reviewing an appeal from a trial court\u2019s order affirming an agency\u2019s final decision, this Court must \u201c(1) determine the appropriate standard of review and, when applicable, (2) determine whether the trial court properly applied this standard.\u201d In re Appeal by McCrary, 112 N.C. App. 161, 166, 435 S.E.2d 359, 363 (1993). The proper standard of review for the trial court to apply \u201cin reviewing an agency decision depends upon the nature of the alleged error.\u201d Id. Where an appellant alleges the agency\u2019s decision was affected by errors of law, \u201cde novo\u201d review is required; however, where an appellant questions whether the agency\u2019s decision was supported by substantial evidence or was arbitrary or capricious, the trial court must employ the \u201cwhole record\u201d test. Walker v. N.C. Dept. of Human Resources, 100 N.C. App. 498, 502, 397 S.E.2d 350, 354 (1990), disc. review denied, 328 N.C. 98, 402 S.E.2d 430 (1991); see also N.C. Gen. Stat. \u00a7\u00a7 150B-51 (b)(4)-(6) (1999).\nIn the case at bar, Dixie Lumber alleged in its petition for judicial review that the Final Agency Decision prejudiced its substantial rights as follows: (1) The conclusion in the Final Agency Decision \u201cthat [Dixie Lumber] was not eligible for reimbursement because tank fees were not paid and [Dixie Lumber] was the operator of the [underground storage tanks] is unsupported by substantial evidence admissible under N.C. Gen. Stat. \u00a7 150B-29(a), -30 or -31, in view of the entire record as submitted, or is arbitrary and capricious\u201d; and (2) The conclusion of law that \u201cThe Environmental Management Commission acted within the authority provided by N.C.G.S. \u00a7 143B-282(a)(2)(h) in adopting rules in subchapter 2P of Title 15A, including 15A. N.C.A.C. 2P0401(b)\u201d is an error of law. Dixie Lumber does not argue on appeal that the trial court applied the incorrect standards of review in considering Dixie Lumber\u2019s arguments, and we conclude that the trial court applied the correct standards of review to Dixie Lumber\u2019s challenges to the Final Agency Decision. Our review is therefore limited to determining whether the trial court properly applied the \u201cwhole record\u201d and \u201cde novo\u201d standards of review to Dixie Lumber\u2019s respective arguments.\nThe trial court states in the findings of fact in its order that, \u201cafter applying the whole record test, the Court finds that the Final Agency Decision of the Department of Environment and Natural Resources is supported by substantial, competent and material evidence.\u201d Furthermore, the trial court found that \u201c[t]he Final Agency Decision was not arbitrary or capricious.\u201d The whole record test requires examination of the entire record to determine whether the agency decision is supported by substantial evidence. See ACT-UP Triangle v. Commission for Health Services, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d Comr. of Insurance v. Rating Bureau, 292 N.C. 70, 80, 231 S.E.2d 882, 888 (1977). \u201cIf substantial evidence supports an agency\u2019s decision after the entire record has been reviewed, the decision must be upheld.\u201d Blalock v. N.C. Dep\u2019t of Health and Human Servs., 143 N.C. App. 470, 473-74, 546 S.E.2d 177, 181 (2001).\nAs Dixie Lumber acknowledges in its brief, the central legal issue in this appeal is whether Dixie Lumber was properly deemed to be the \u201coperator\u201d of the tanks under N.C. Gen. Stat. \u00a7 143-215.94A (1999). We note that Dixie Lumber did not specifically except to any of the Final Agency Decision\u2019s findings of fact before the trial court; thus, the findings of fact in the Final Agency Decision were binding on the trial court and constituted the whole record before it. See Wiggins v. N.C. Dept. of Human Resources, 105 N.C. App. 302, 413 S.E.2d 3 (1992). Therefore, \u201cthe trial court had to determine whether those findings reflected substantial evidence to support\u201d the Final Agency Decision finding Dixie Lumber to be the operator. Id. at 306, 413 S.E.2d at 5.\nG.S. \u00a7 143-215.94A(8) defines \u201coperator\u201d as \u201cany person in control of, or having responsibility for, the operation of an underground storage tank.\u201d After reviewing the record, we conclude that it contains substantial evidence to support the Final Agency Decision that Dixie Lumber was the \u201coperator\u201d of the tanks. Indeed, testimony before Judge Wade indicated that an underground storage tank form on file with the Environmental Department listed Larry Summer, an officer of Dixie Lumber, as the contact person at the tanks\u2019 site, indicating a relationship between Dixie Lumber and the tanks. Furthermore, the contact person listed on the form usually indicates the tanks\u2019 operator. Evidence before Judge Wade indicated that Dixie Lumber used the two tanks for its business until discontinuing its relationship with its petroleum supplier, McNeely Oil Company. The Final Agency Decision\u2019s unchallenged findings reflect that only Dixie Lumber\u2019s employees used the tanks; Dixie Lumber\u2019s employees maintained the tanks, locking them up nightly; and purchased and installed the second tank in the 1970s. While there may be conflicting evidence in the record, the \u201cwhole record\u201d test \u201cdoes not allow the reviewing court to replace the agency\u2019s judgment as between two reasonably conflicting views, even though the court could justifiably have reached a different result had the matter been before it de novo.\" Mendenhall v. N.C. Dept. of Human Resources, 119 N.C. App. 644, 650, 459 S.E.2d 820, 824 (1995). We hold Dixie Lumber\u2019s first two assignments of error to be without merit.\nDixie Lumber next argues that the trial court erred in concluding that the Environmental Department did not exceed its statutory authority or jurisdiction, or commit an error of law in denying Dixie Lumber reimbursement from the Commercial Fund. We disagree.\nAs Dixie Lumber alleged an error of law, \u201cde novo\u201d review was required; we note that the trial court applied \u201cde novo\u201d review to this argument. We must therefore determine whether the trial court did so properly. See In re McCrary.\nG.S. \u00a7 143-215.94B establishes the Commercial Fund and defines the parameters for the disbursement of funds therein. N.C. Gen. Stat. \u00a7 143-215.94C(a) (1999) provides that an:\noperator of a commercial petroleum underground storage tank shall pay to the [North Carolina] Secretary [of Environment and Natural Resources] for deposit into the Commercial Fund an annual operating fee according to the following schedule:\n(1) For each petroleum commercial underground storage tank of 3,500 gallons or less capacity \u2014 two hundred dollars ($200.00).\n(2) For each petroleum commercial underground storage tank of more than 3,500 gallon capacity \u2014 three hundred dollars ($300.00).\nAdditionally, N.C. Gen. Stat. \u00a7 143-215.94E (1999) delineates the rights and obligations of operators, providing in relevant part that:\n(g) No . . . operator shall be reimbursed pursuant to this section, and the [Environmental] Department shall seek reimbursement of the appropriate fund or of the [Environmental] Department for any monies disbursed from the appropriate fund or expended by the [Environmental] Department if:\n(3)The . . . operator has failed to pay any annual tank operating fee due pursuant to G.S 143-215.94C.\nG.S. \u00a7 143-215.94E(g). Dixie Lumber does not contest that past annual tank operating fees were due at the time of discovery of the releases from the tanks. Rather, Dixie Lumber argues that G.S. \u00a7 143-215.94E(g)(3) does not impose a time restriction for fee payments, and appears to allow for the \u201cback\u201d payment of fees following the discovery of a release, so long as the fees are paid prior to reimbursement from the Commercial Fund. However, N.C. Admin. Code tit. 15A, r. 2P.0401(b) (September 2001) provides that:\nAn . . . operator of a commercial underground storage tank is not eligible for reimbursement for costs related to releases if any annual operating fees due have not been paid in accordance with [N.C. Admin. Code tit. 15A, r. 2R0301 (2000)] prior to discovery.\"\n(Emphasis added.) Dixie Lumber contends that this rule conditioning eligibility for reimbursement from the Commercial Fund upon the payment of fees prior to the discovery of the release conflicts with G.S. \u00a7 143-215.94E(g)(3) and is therefore invalid. We disagree.\nThe North Carolina Environmental Management Commission is the agency charged with enforcing the \u201cOil Pollution and Hazardous Substances Control Act of 1978,\u201d set forth in Article 21A of Chapter 143 of our General Statutes, including Part 2A thereof, \u201cLeaking Petroleum Underground Storage Tank Cleanup.\u201d See G.S. \u00a7 143-215.94A et seq.; see also N.C. Gen. Stat. \u00a7\u00a7 143-215.77(2) and 143-215.79 (1999); Carpenter v. Brewer Hendley Oil Co., 145 N.C. App. 493, 549 S.E.2d 886 (2001). The Environmental Management Commission is specifically authorized under N.C. Gen. Stat. \u00a7 143-215.3(a)(17) (1999) to \u201cadopt rules to implement Part 2A of Article 21A of Chapter 143.\u201d See also N.C. Gen. Stat. \u00a7\u00a7 143B-282(a)(2)(h) and (i) (1999). We conclude that the Environmental Management Commission was empowered to adopt N.C. Admin. Code tit. 15A, r. 2P.0401(b) in an effort to implement G.S. \u00a7 143-215.94A et seq.) furthermore, Dixie Lumber\u2019s argument that the rule conflicts with G.S. \u00a7 143-215.94E(g)(3) is wholly without merit.\nAccordingly, the trial court\u2019s 28 March 2001 order affirming the 7 November 2000 Final Agency Decision is,\nAffirmed.\nJudges MCCULLOUGH and THOMAS concur.",
        "type": "majority",
        "author": "WYNN, Judge."
      }
    ],
    "attorneys": [
      "Moore & Van Allen PLLC, by Peter J. McGrath, Jr., for the petitioner.",
      "Attorney General Roy Cooper, by Assistant Attorney General Kimberly W. Duffley, for the respondent."
    ],
    "corrections": "",
    "head_matter": "DIXIE LUMBER COMPANY OF CHERRYVILLE, INC., Petitioner v. NORTH CAROLINA DEPARTMENT OF ENVIRONMENT, HEALTH AND NATURAL RESOURCES, DIVISION OF ENVIRONMENTAL MANAGEMENT, Respondent\nNo. COA01-739\n(Filed 7 May 2002)\n1. Environmental Law\u2014 judicial review of final agency decision \u2014 commercial underground petroleum tanks \u2014 operator\nThe trial court did not err by affirming defendant Department of Environment, Health, and Natural Resources\u2019s final agency decision denying plaintiff company a reimbursement from the Commercial Leaking Petroleum Underground Storage Tank Cleanup Fund under N.C.G.S. \u00a7 143-215.94B for cleanup costs incurred by releases from two underground petroleum storage tanks on plaintiffs property, and the whole record test reveals that the final agency decision deeming plaintiff to be the operator of the commercial underground petroleum tanks under N.C.G.S. \u00a7 143-215.94A was supported by substantial, competent, and material evidence, and was not arbitrary and capricious.\n2. Environmental Law\u2014 judicial review of final agency decision \u2014 commercial underground petroleum tanks \u2014 operator\u2019s failure to pay fees\nA de novo review reveals that the trial court did not err by concluding that defendant Department of Environment, Health, and Natural Resources did not exceed its statutory authority or jurisdiction, or commit an error of law in denying plaintiff company reimbursement from the Commercial Leaking Petroleum Underground Storage Tank Cleanup Fund under N.C.G.S. \u00a7 143-215.94B for cleanup costs incurred by releases from two underground petroleum storage tanks on plaintiffs property based on plaintiffs failure to pay fees assessed against operators of commercial underground petroleum tanks, because: (1) the Environment Management Commission is specifically authorized under N.C.G.S. \u00a7 143-215.3(a)(17) to adopt rules to implement Part 2A of Article 21A of Chapter 143; (2) the Environment Management Commission was empowered to adopt N.C. Admin. Code tit. 15A, r. 2P.0401(b) in an effort to implement N.C.G.S. \u00a7 143-215.94A et seq.; and (3) plaintiffs argument that the rule conditioning eligibility for reimbursement from the Commercial Fund upon the payment of fees prior to the discovery of the release conflicts with N.C.G.S. \u00a7 143-215.94E(g)(3) is wholly without merit.\nAppeal by petitioner from order entered 28 March 2001 by Judge Sanford L. Steelman, Jr., in Superior Court, Gaston County. Heard in the Court of Appeals 17 April 2002.\nMoore & Van Allen PLLC, by Peter J. McGrath, Jr., for the petitioner.\nAttorney General Roy Cooper, by Assistant Attorney General Kimberly W. Duffley, for the respondent."
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